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These terms and conditions (the "Terms and Conditions") apply to and govern the free trial version of Joshu platform (the "Trial Platform"). The sole purpose of the Trial Platform is to introduce Joshu's services to potential customers and enable them to experiment with Joshu's services and Joshu's platform's environment and user interface.
These Terms and Conditions are a legally binding agreement between you, the person or entity that will be accessing or using the Trial Platform (the "Trial Platform User"), and Joshu Inc. ("Joshu"), with respect to the use of the Trial Platform (Joshu and Trial Platform User may be referred to herein collectively as the “Parties” or individually as a “Party”).
By accessing and/or using the Joshu's Trial Platform, Trial Platform User accepts these Terms and Conditions. Joshu reserves the right, in its sole discretion, to modify these Terms and Conditions at any time by posting the modified provisions on its website, and Trial Platform User shall be responsible for reviewing and becoming familiar with any such modifications. Please note that any such modifications shall become effective immediately upon posting. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCESS OR USE THE TRIAL PLATFORM.
ACCESS TO AND/OR USE OF THE TRIAL PLATFORM ARE RESTRICTED AS SET FORTH HEREUNDER AND ARE PROHIBITED TO JOSHU'S COMPETITORS OR POTENTIAL COMPETITORS OR ANY AFFILIATES THEREOF, INCLUDING ENTITIES SELLING OR OFFERING PRODUCTS OR SERVICES TO INSURANCE CARRIERS OR AGENTS OR CONTEMPLATING TO DO SO, UNLESS PRIORLY AND EXPLICITLY APPROVED BY JOSHU.
1. OVERVIEW.
1.1 General. These Terms and Conditions states the terms and conditions by which Joshu will deliver and Trial Platform User will receive any or all of the Trial Platform Services, as set forth below.
1.2 Definitions.
(a) “Aggregate Data” means any de-identified and aggregated statistical data or information relating to Trial Platform User’s use of the Trial Platform Services, including, without limitation, any usage data or trends with respect to the Trial Platform Services.
(b) “Authorized Users” means employees and contractors of Trial Platform User who are authorized by Trial Platform User to use the Trial Platform Services.
(c) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Joshu to Trial Platform User (including any revised versions thereof) relating to the Trial Platform Services, to the extent given to Trial Platform User by Joshu, which may be updated from time to time upon notice to Trial Platform User.
(d) “Joshu IP” means, except as otherwise provided herein, all Joshu's services, including but not limited to Joshu's business, technologic, services, products and marketing concepts, Joshu's services and or products, including but not limited to the Trial Platform Services, the underlying software provided in conjunction with thereof, algorithms, interfaces, technology, databases, tools, know-how, processes work flows and methods used to provide or deliver the Josho's services including Trial Platform Services, and also the Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
(e) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
(f) “Trial Platform User Materials” means all information, data, content and other materials, in any form or medium that relating to Trial Platform User that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Trial Platform User through the Trial Platform Services or to Joshu in connection with Trial Platform User’s access and/or use of the Trial Platform Services or with these Terms and Conditions, but excluding, for clarity, Aggregate Data and Joshu IP.
(g) “Services” means the Trial Platform Services.
(h) “Trial Platform Services” means a subset of the services included in Joshu’s proprietary software-as-a-service platform, or any limited version or functionality thereof, which is made available by Joshu to Trial Platform User solely for the purpose of introduction of Joshu's services to potential customers and enable them to experiment with Joshu's services and Joshu's platform's environment and user interface.
2. TRIAL PLATFORM SERVICES; ACCESS AND USE.
2.1 Trial Platform Services. Subject to these Terms and Conditions, Joshu hereby grants to Trial Platform User a limited, non-exclusive, non-perpetual, non-transferable, non-sublicensable, revocable right to access and use the Trial Platform Services, at Joshu's good will, solely for the purpose of presentation and offering of Joshu's services and to enable the Trial Platform User experimenting with these services.
2.2 Access to Trial Platform. Access to or use of Trial Platform are restricted and subject to Joshu's prior approval. Joshu will consider every request for access or use of Trial Platform and may allow, at its sole discretion, potential customers to access to and/or use of Trial Platform, for a period of 14 days (the "Trial Term"), which can be extended at Joshu's sole and exclusive discretion.
2.3 Restrictions. Trial Platform User will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) access or use the Trial Platform Services in any manner beyond the scope of rights expressly granted in these Terms and Conditions; (ii) modify or create derivative works of the any Joshu IP, including but not limited to Trial Platform Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Joshu's services, including but not limited to Trial Platform Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease any access or use of the Trial Platform Services to any other Person, or otherwise allow any Person to access or use the Trial Platform Services for any purpose other than for the benefit of Trial Platform User in accordance with these Terms and Conditions, including by means of making the Services available as a service bureau for the benefit of others; (v) access or use the Trial Platform Services or Documentation in any manner or for any purpose that violates any third party rights (including IP rights), or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Trial Platform Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Trial Platform Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Trial Platform Services features provided or approved by Joshu for use expressly for such purposes; or (viii) access or use the Trial Platform Services, Documentation or any other Joshu Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Trial Platform Services.
2.4 Authorized Users. Trial Platform User will not allow any Person other than Authorized Users to access or use the Trial Platform Services. Trial Platform User may permit Authorized Users to access and/or use the Trial Platform Services, provided that Trial Platform User will ensure each Authorized User complies with all applicable terms and conditions of these Terms and Conditions. Trial Platform User will be responsible for all acts, omissions and obligations of Authorized Users in connection with the Trial Platform Services, as though such acts, omissions and/or obligations were those of Trial Platform User. Trial Platform User will, and will require all Authorized Users to, use reasonable means to secure usernames and passwords, hardware and software used to access the Trial Platform Services in accordance with customary security protocols, and will promptly notify Joshu if Trial Platform User knows or reasonably suspects that any username and/or password has been compromised.
2.5 Reservation of Rights. Joshu reserves and, as between the Parties will solely own, the Joshu IP and all rights, title and interest in and to the Joshu IP. No rights are granted to Trial Platform User or to any affiliate thereof or to any third party (whether by implication, estoppel, exhaustion or otherwise).
2.6 No-support; Updates. During the Trial Term Joshu may, but is not obligated to, provide Trial Platform User with support. In addition, during the Term, Joshu may implement Updates to the Trial Platform Services. For purposes hereof, “Updates” means any modifications, error corrections, bug fixes, or other updates of or to the Trial Platform Services and Documentation, including as required to maintain compliance with applicable laws. Any such Update provided or made available by Joshu hereunder shall be deemed a part of the Trial Platform Services and subject to the terms and conditions of these Terms and Conditions.
2.7 Feedback. From time to time Trial Platform User or its employees, contractors, or representatives may provide Joshu with suggestions, comments, feedback or the like with regard to the Trial Platform Services (collectively, “Feedback”). Trial Platform User hereby grants Joshu a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Joshu’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Joshu's services, including but without limitation Trial Platform Services.
3. CONFIDENTIAL INFORMATION.
3.1 Definition. As used herein, “Confidential Information” means any information that Joshu may disclose or provide to the Trial Platform User in connection with the use of the Trial Platform and/or with these Terms and Conditions, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For avoidance of doubt, Joshu IP, the Trial Platform Services, Feedback and the Documentation will be deemed Confidential Information of Joshu. However, Confidential Information will not include any information or materials that: (i) are at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Trial Platform User; (ii) are rightfully known by the Trial Platform User prior to receiving such information or materials from the Joshu; (iii) are rightfully acquired by the Trial Platform User from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Joshu; or (iv) are independently developed by or for the Trial Platform User without use of or access to any Confidential Information of the Joshu.
3.2 Obligations. The Trial Platform User will maintain the Joshu’s Confidential Information in strict confidence, and will not use the Confidential Information of the Joshu except as necessary to perform its obligations or exercise its rights under these Terms and Conditions. The Trial Platform User will use the same level of care to protect the Confidential Information of the Joshu from unauthorized disclosure as it uses to protect its own Confidential Information, but in no event less than reasonable care, and will not disclose or cause to be disclosed any Confidential Information of the Joshu, except (i) to those employees, representatives, or contractors of the Trial Platform User who have a bona fide need to know such Confidential Information to perform under these Terms and Conditions and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms and Conditions, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Trial Platform User providing to the Joshu reasonable written notice to the extent legally permitted to allow the Joshu to seek a protective order or otherwise contest the disclosure and will reasonably cooperate with the Joshu in seeking such protective order, at the Joshu’s expense. Both Parties agree that all items of Confidential Information are proprietary to the Joshu and shall remain the sole property of the Joshu.
4. TRIAL PLATFORM USER MATERIALS AND DATA.
4.1 License; Restrictions. Trial Platform User hereby grants to Joshu a non-exclusive, worldwide, revocable, royalty-free right and license during the Term to use, host, reproduce, display and perform publicly, and modify the Trial Platform User Materials solely for the purpose of hosting, operating and providing the Trial Platform Services to Trial Platform User, including by generating the Aggregate Data.
4.2 Data Security. Trial Platform User will use commercially reasonable efforts and take no less than best industry standard precautions to store, collect, transmit, handle and receive all data received from Joshu in connection with the access or use of Trial Platform and with these Terms and Conditions, and will cooperate with Joshu in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with these Terms and Conditions and any applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.
4.3 Authority. Trial Platform User represents and warrants that (a) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the Trial Platform User Materials (including any personal data provided or otherwise collected pursuant to Trial Platform User’s privacy policy) as contemplated by these Terms and Conditions and (b) Joshu’s use of the Trial Platform User Materials in accordance with these Terms and Conditions will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Trial Platform User and any third party.
5. TRIAL PLATFORM USER WARRANTIES.
5.1 Trial Platform User represents and warrants that (i) its use of the Trial Platform (including Trial Platform User Materials) will comply with all applicable state and federal laws, rules and regulations, and (ii) it owns or has acquired, at its own expense, all proprietary rights related to the Trial Platform User Materials and necessary to grant the intellectual property licenses and rights set forth in these Terms and Conditions.
5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE TRIAL PLATFORM SERVICES ARE PROVIDED ON AN “AS IS” AND ON "AS AVAILABLE" BASIS, AND JOSHU MAKES NO WARRANTIES OR REPRESENTATIONS TO TRIAL PLATFORM USER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING JOSHU SERVICES, THE TRIAL PLATFORM SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JOSHU HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE PROVIDED HEREIN, JOSHU HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE TRIAL PLATFORM SERVICES OR ANY OF ITS SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, AND ALL WARRANTIES AND LIABILITIES RELATING TO ANY OFFERINGS AND THE ACTS AND OMISSIONS OF TRIAL PLATFORM USERS ITS AFFILIATES OR ANY THIRD PARTY.
6. INDEMNIFICATION.
6.1 Trial Platform User will defend Joshu against any third party claims (“Claims”) arising from (a) a claim that any Trial Platform User Materials infringe or violate any third party’s intellectual property or other proprietary rights, privacy rights or data protection obligations; or (b) a claim that the use, provision, transmission, display or storage of Trial Platform User Materials violates any applicable law, rule or regulation, and in each case, will indemnify and hold harmless Joshu against any damages and costs awarded against Joshu or agreed in settlement by Trial Platform User (including reasonable attorneys’ fees) resulting from such Claim. In the event of a Claim, Joshu will promptly notify Trial Platform User of the Claim for which indemnity is being sought and will reasonably cooperate with Trial Platform User in the defense and/or settlement thereof. Trial Platform User will have the sole right to conduct the defense of any Claim for which Trial Platform User is responsible hereunder (provided that Trial Platform User may not settle any Claim without Joshu’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Joshu from all liability without prejudice, does not require any admission by Joshu, and does not place restrictions upon Joshu’s business, products or services). Joshu may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if Trial Platform User refuses to fulfill its obligation of defense, Joshu may defend itself and seek reimbursement from Trial Platform User.
7. LIMITATIONS OF LIABILITY.
7.1JOSHU IS NOT AND WILL NOT BE LIABLE TO TRIAL PLATFORM USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES , ARISING OUT OF OR IN CONNECTION WITH THE TRIAL PLATFORM OR THIS TERMS AND CONDITIONS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOT WITHSTANDING THE FOREGOING, IN NO EVENT WILL JOSHU'S AND/OR JOSHU'S AFFILATETES' TOTAL LIABILITY TO SELEER IN CONNECTION WITH THE TRIAL PLATFORM OR THESE TERMS AND CONDITIONS EXCEED THE AMOUNT OF ONE HUNDRED (100) US DOLLARS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8. TERMINATION OF TRIAL PLATFORM; SURVIVAL.
8.1 Termination. This Agreement will terminate upon the lapse of the Trial Term. Joshu may, at any time and without prior notice, revoke, block or limit Trial Platform User access to or use of the Trial Platform if it has reason to believe that Trial Platform User has violated any of the terms of these Terms and Conditions, or for no reason. Notwithstanding of the foregoing, Joshu may terminate, on its sole discretion and without prior notice, the Services and/or the Trial Platform or any of Joshu's services.
8.2 Effect of Termination. Upon expiration or termination of this pursuant to Section 8.1 herein: (a) the rights granted pursuant to Section 2.1 will terminate; and (b) Trial Platform User will return or destroy, at the Joshu’s sole option, all Joshu's Confidential Information in Trial Platform User possession or control.
8.3 Survival. This Section 8.3 and Sections 1, 2.2, 2.5, 2.7, 3, 6, 7, 8.2 and 9 survive any termination pursuant to Section 8.1 herein.
9. GENERAL.
9.1 Waiver. Joshu’s failure to enforce any provision of these Terms and Conditions will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms and Conditions will be effective unless it is in writing and signed by Joshu.
9.2 Severability. If any provision of these Terms and Conditions is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of Joshu, and the remaining provisions of these Terms and Conditions will remain in full force and effect.
9.3 Governing Law; Jurisdiction. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of California. Any legal action or proceeding arising under these Terms and Conditions will be brought exclusively to the competent courts located in San Mateo County, California, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
9.4 Trial Platform User and acknowledges that breach or threatened breach by Trial Platform User or any of its affiliates of any of its obligations under Sections 4, 2.1 or 2.2 may cause Joshu irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, Joshu will have the right to seek immediate relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
9.5 Subcontracting. Joshu may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate. Notwithstanding anything to the contrary in these Terms and Conditions, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Joshu will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors.
9.6 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
